Preliminary Response To Return Of Writ

While my lawyers review this I thought I would share it with you.

M A N I F E S T A T I O N

 

The Bureau of Immigration illegally arrested Jeffrey Alan Evans on 12 October 2009. In an attempt to cover their mistakes which include not following the instructions of the mission order, which required strict compliance, not investigating the accusations properly prior to Mr. Evans arrest, “conniving” with two other persons to put Mr. Evans in the place and time of his arrest for the purpose of strengthening a non existent case, not advising Mr. Evans of his rights and falsely claiming that they did, not offering Mr. Evans the opportunity to respond to the accusations prior to the issuance of a charge sheet the Bureau of Immigration has chosen in eight different areas of their Return of Writ to blatantly disregard the evidence and misrepresent the facts. All of these facts are backed up by documentation in the form of affidavits and an independent report from the National Bureau of Investigation who did actually investigate the claims.

 

The Bureau of Immigration takes the following positions in their Return of Writ:

  1. The arrest was legal.
  2. The petitioner did not have the necessary permit to engage in business in the Philippines.
  3. The petitioner owned operated and managed Bangkok Nights Restobar.
  4. The petitioner owned and operated Internet Cafes.
  5. Franklin Z. Littaua issued a mission order recommending that petitioner be subjected to deportation proceedings and be placed on the blacklist.
  6. On the basis of the mission order petitioner was arrested.
  7. The SVEG was disapproved on September 30, 2009.
  8. The contents of testimony given 27 August 2009 in a criminal case constitute proof of ownership in Bangkok Nights Restobar and Internet cafes.
  9. Because there is now a charge sheet the arrest was legal.

 

The position of Jeffrey Alan Evans is:

  1. The arrest was illegal for three reasons:
    1. The mission order was not legal:
    2. The arrest did not meet the requirements of a warrantless arrest.
    3. The mission order was not followed.
  1. The Executive Director & Chairman, Regionalization Program of the Bureau of Immigration, Franklin Z. Litaua, issued MISSION ORDER NO. MCL/A-X-09-0002 dated 08 October 2009 directing the following:

 

  1. Validate the admission status, immigration documents, existence and sufficiency of investment in the country (for investor’s/retiree’s/13-quota visa holder), and activities of foreign subject national and, if found to be in violation of Philippine Immigration Law, bring him to the Bureau for further disposition.
  2. Valid for seven (7) working days from date of approval
  3. Submit After-Mission Report and Recommendation.
  4. For strict compliance

 

  1. Based on said Mission Order, Immigration employees Maclin D. Lanto, Rashid Ragiris, Basher Pagariungan and Camid Musor, Jr. apprehended petitioner Jeffrey Alan Evans, American National on 12 October 2009.

 

  1. The Mission Order is actually a warrant of arrest because it effectively deprived an individual of his precious liberty.
  2. The Mission Order is illegal and the deprivation of liberty by the Immigration Official of Mr. Jeffrey Alan Evans by virtue of said Mission Order is a serious violation of Executive Order No. 287 issued on 04 September 2000 by President Joseph Estrada. Quoted is the pertinent provision of the said EO:

SECTION 1. Authority to Issue Mission Orders for Verification and Investigation of Suspected Illegal Aliens .–  Upon a well-founded and reasonable determination by the Commission of Immigration, based on available and verified civilian, immigration, or military intelligence reports, that an alien has committed, is actually committing or is about to about to commit an act of omission in violation of immigration laws, rules and regulations, or in violation of Philippine laws, rules and regulations, which may constitute grounds for deportation, the Commissioner of Immigration or in his absence, the Acting Commissioner of Immigration is hereby authorized, in the interest of national security, public safety and/or national interests, to issue a mission order  directing appropriate officers of the Bureau of Immigration, whether organic or on detail, to conduct verification and investigation operations against the alien or aliens concerned, and if probable cause exists, to effect a warrantless arrest of such alien or aliens in accordance with Section 5, Rule 113 of the Rules of Court, if found in flagrante violating Philippine Immigration laws. (Emphasis supplied).

 

  1. The Mission Order is illegal and the deprivation of liberty by the Immigration Official of Mr. Jeffrey Alan Evans by virtue of said Mission Order is a serious violation of the Constitution because it was issued by a person unauthorized to do so. Deprivation of liberty can only be done through a warrant of arrest issued by a judge, to quote:

Unquestionably, the exercise of the power to order the arrest of an individual demands the exercise of discretion by the one issuing the same, to determine whether under specific circumstances, the curtailment of the liberty of such person is warranted. The fact that the Constitution itself, as well as the statute relied upon, prescribe the manner by which the warrant may be issued, conveys the intent to make the issuance of such warrant dependent upon conditions the determination of the existence of which requires the use of discretion by the person issuing the same. In other words, the discretion of whether a warrant of arrest shall issue or not is personal to the one upon whom the authority devolves. And authorities are to the effect that while ministerial duties may be delegated, official functions requiring the exercise of discretion and judgment, may not be so delegated. Indeed, an implied grant of power, considering that no express authority was granted by the law on the matter under discussion, that would serve as a curtailment or limitation on the fundamental right of a person, such as his security to life and liberty, must be viewed with caution, if we are to give meaning to the guarantee contained in the Constitution. If this is so, then a delegation of that implied power, nebulous as it is, must be rejected as inimical to the liberties of the people. The guarantees of human rights and freedom can not be made to rest precariously on such a shaky foundation. [1]

 

  1. Even assuming for the sake of argument that the Mission Order was validly issued, the circumstances in the arrest of petitioner Evans do not meet the requirements of a warrantless arrest. The arresting officers, namely, Maclin D. Lanto, Rashid Ragiris, Basher Pagariungan and Camid Musor, Jr. described the arrest as follows:

 

That a Tipster informed us that Mr. Evans will go to Bangkok Night Restaurant which he also owned, managed, and operated. At around 12:30 pm Mr. Evans was doing routine check of his establishment, undersigned apprehended Mr. Evan after introducing ourselves as agent of Bureau at the same time informing him of his rights guaranteed in our constitution in a plain and clear English Language which he speaks and understands. Mr. Jeffrey Alan Evan did not resist and voluntarily agreed to go with us to Cagayan de Oro Immigration Office.” (Underscoring supplied).

  1. His arrest was therefore based on warrantless arrest provided by the Rules on Criminal Procedure.

 

The pertinent provisions of Rule 113 of the Rules on Criminal Procedure on warrantless arrest provide:

Sec. 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a warrant, arrest a person:

a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

Section 5, above, provides three (3) instances when warrantless arrest may be lawfully effected: (a) arrest of a suspect in flagrante delicto; (b) arrest of a suspect where, based on personal knowledge of the arresting officer, there is probable cause that said suspect was the author of a crime which had just been committed; (c) arrest of a prisoner who has escaped from custody serving final judgment or temporarily confined while his case is pending.

For a warrantless arrest of an accused caught in flagrante delicto under paragraph (a) of Section 5 to be valid, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer.[2]

  1. A blow too soon struck for freedom is preferred than a blow too late.”[3]

 

The Mission Order was not followed:

“Validate the admission status, immigration documents, existence and sufficiency of investment in the country (for investor’s/retiree’s/13-quota visa holder), and activities of foreign subject national and, if found to be in violation of Philippine Immigration Law, bring him to the Bureau for further disposition.” Exhibit 1

Maclin D. Lanto did not ask Mr. Evans any questions prior to his arrest. He acted on the report of Harold R. Pacasum who when interviewed by the NBI Mr. Pacasum manifested that his report was subject to verification and confirmation thru proper investigation. According to the findings of the NBI, no such investigation was ever conducted. In the NBI investigation the conclusion is that the arrest was illegal. This is contained in File No. ILDO# 09-118 and is attached Exhibit 2.

The NBI further concluded that the Bureau of Immigration agents “connived” with two other parties. One Mylen Monte the ex-girlfriend of the petitioner and one Butch Muldes. The NBI report shows the motivation of Mylen Monte for her involvement. Mr. Evans is the complainant in criminal case number 08-910,08-911 against Butch Muldes for Malicious Mischief and Usurpation of Authority. While the Bureau of Immigration has provided carefully crafted and chosen excerpts for their purpose we have included all of Mr. Evans testimony. Upon reading the testimony you will find two interesting points. The first is that the Attorney Tomas Garcillano for Butch Muldes asked very little about the crime itself. The second is that this Attorney Tomas Garcillano, who specifically crafted questions to make it look like Mr. Evans owned Bangkok Nights is also the attorney for Mylen Monte in the Replivin case he filed against her and the RA9262 case she filed against him. In those cases Attorney Garcillano argued that the businesses and all of the contents belonged to Mylen Monte. Exhibits 3 and 3A.

 

In Mr. Evans Affidavit to the NBI (Exhibit 4) he sequences the events of his arrest and notes that even though he asked what his rights were, he never had them told to him. This is in direct conflict with the after mission report submitted by Maclin D. Lanto and is corroborated  by two affidavits (Exhibits 5 and 5A.) of witnesses on the scene of his arrest.

 

  1. The second claim we challenge is the petitioner did not have the necessary permit to engage in business in the Philippines. In the same paragraph (4) of the Return of Writ, the Bureau of Immigration states: “As such, he can not engage in any business in the country, unless permitted to do so under certain conditions and requirements of appropriate laws.” We hold that the SVEG application supplied exactly those conditions. And in complying with the requirements for the SVEG petitioner acquired all required licenses and permits from the Securities and Exchange Commission as well as all local government permits. He fulfilled all of the requirements of the SVEG process barr none including a work permit from the Department of Labor and Employment. Further more the after mission report shows that the Bureau of Immigration had copies of Mr. Evans business licenses in their possession.. There is no visa an applicant for the SVEG would hold that would allow them to work that would then require them to get an SVEG. This defeats not only the spirit but the intention of the SVEG.
  2. The third and fourth claim we challenge is that the petitioner owned and operated Bangkok Nights Restobar. There is no evidence to support this. Jeffrey Evans does not own and has never owned Bangkok Nights Restobar. He did loan his girlfriend at the time the money she used to build this business. In June of 2008 Jeffrey Evans was locked out of this business and did not reenter the premises until sometime in late September 2009. If he owned Bangkok Nights Restobar – How could he have been locked out for 16 months. When he did finally reenter this was the result of a writ of Replivin filed by Jeffrey Evans and granted by the court. The writ was filed because his now ex girlfriend had elected to not repay him for the equipment that was purchased with money he loaned her. On 03 September 2009 Mylen Monte made the following police blotter entry:

Exhibit 6

(06) 3:05 PM Violated the Temporary Protection Order (Record Purpose)

        Mylen Monte y Jordan, 27 years old, single, businesswoman and resident of Tomas Cabili, Tominobo, Iligan City. Appeared and reported to this station that on or about 12:00 noon of August 31, 2009 at Bangkok Nights Resto-Bar located at Quezon Avenue, Corner Roxas Avenue, Poblacion, Iligan City, A certain Jeffrey Evans y Alan, 47 years old, businessman, divorced, US National and resident of Tumala Apartment, Celdran Village, Tubod, Iligan City. Allegedly entered to Bangkok Nights Resto-Bar premises without her permission and allegedly violated the Temporary Protection Order (TPO) of Civil Case Number 11-7172 for Violation Against Women and their Children (RA 9262) signed by Evah S. Paglinawan, Legal Researcher, OIC/Clerk of Court dated July 07, 2008. (Emphasis supplied)

 

The above statement clearly shows the ownership of Bangkok Nights Restobar. It also shows that the Bureau of Immigration knew this more than a month before the arrest. In addition to this and the findings of the NBI (Exhibit 2) paragraph 16 there have been no fewer than 6 affidavits submitted that support the fact that Mylen Monte owned and operated Bangkok Nights. The evidence clearly indicates that Jeffrey Evans did not own, manage or operate Bangkok Nights. Further evidence may be found in the Petition of Civil Case No. 7172. Mylen Monte claims ownership of all internet cafes and the Bangkok Nights Restobar. (Exhibit 3) The Judge Alan L. Flores was satisfied that Mylen Monte indeed owned the cafes and Bangkok Nights and issues a Temporary Protection Order on July 2, 2008. (Exhibit 3A) The Bureau of Immigration wants to point to the testimony in the case against Butch Muldes as their indication of Mr. Evans ownership of Bangkok Nights Restobar. As Mr. Evans reads the transcript of Attorney Garcillano’s questions he finds it hard to follow and confusing. For clarification, we have obtained an affidavit from Lyndon Zerna as to the dates in which he worked for Mylen Monte and when he worked for Mr. Evans. We further readily admit that Mr. Evans was the owner of the equipment inside the Bangkok Nights Restobar and the Internet Cafes. Mr. Evans having loaned Mylen Monte the money for these ventures, and Ms. Monte demonstrating that she had no intention of paying Mr. Evans back, Mr. Evans filed a Replivin case against Ms. Monte. After 16 months Mr. Evans was granted a writ of Replivin. The Bureau of Immigration says the license for Bangkok Nights Restobar was granted in October 2007. The passport of Mr. Evans (passport number:218896559) Show him leaving the Philippines on 3 December 2007 and not returning until April 23, 2008. He then departed April 30, 2008 after a seven day stay. He returned on May 28, 2008. On June 15, 2008 Mylen Monte prohibited Mr. Evans from entering Bangkok Nights or the cafes. This prohibition lasted until sometime in late September 2009. So the question begs to be asked: When did Mr. Evans (own, manage and operate) the said businesses. Using the license date provided by the Bureau of Immigration, in the two years that Bangkok Nights was open (Closed late October 2009) Mr. Evans had access for less than 3 months.

 

12. The fifth claim we challenge is: “Franklin Z. Littaua issued a mission order recommending that petitioner be subjected to deportation proceedings and be placed on the blacklist.” This is not the instructions of the mission order. The mission order

(Exhibit 7) is very simple and only has four instructions. They are:

 

  1. Validate the admission status, immigration documents, existence and sufficiency of investment in the country (for investor’s/retiree’s/13-quota visa holder), and activities of foreign subject national and, if found to be in violation of Philippine Immigration Law, bring him to the Bureau for further disposition.
  2. Valid for (7) working days from the date of approval
  3. Submit After-Mission Report and Recommendation.
  4. For strict compliance.

The Bureau of Immigration attorneys (and the attorneys of the solicitor generals office – 13 of them) apparently had as much trouble reading this as the agents did following it. No where in the mission order does it state that Mr. Evans should be placed on the blacklist or subjected to deportation proceedings. Those elements would only take place after a proper investigation and finding of appropriate facts. A proper investigation by the Bureau of Immigration was never done.

  1. 13.    The sixth claim we challenge is: “On the basis of the mission order petitioner was arrested.” The arrest was not based on the mission order as the mission order was not followed as shown by the NBI investigation. Further evidence lies in the after mission report. Mr. Lanto upon reaching Iligan City went directly to the PNP. This is not unusual. However the fact that he was supplied two PNP personnel is an indication he had no intention to validate or investigate anything. In fact he claims that he had “established a prima facie violation of pertinent Immigration Laws section 37 (a)(7), the undersigned requested a Mission Order from the Executive Director and Chairman of Regionalization Program which the latter immediately granted, signed and issued Mission Order no. MCL-A-X-09-002.” The above indicates that Mr. Lanto did not feel he needed to comply with instruction number 1. As he already had what he believed to be a “prima facie violation”. In section 1 we question the legality and wisdom of the judgment of the commissioner being substituted for by the Executive Director and Chairman of Regionalization Program. This same judgment is now being substituted for by Maclin D. Lanto.
  2. 14.    The seventh claim we challenge is: “The SVEG was disapproved on September 30, 2009.” This may once again just be a reading problem. On 12 October 2009, after his arrest, Mr. Evans was shown a letter from Atty. Roy M. Almoro, commissioner in charge dated 30 September 2009. This is the same letter presented in the Return of The Writ by the Bureau of Immigration. It states: “We are holding in abeyance the processing of your application for SVEG” It later states: “Rest assured that once you are cleared of these charges we will start processing your application.” No where does it use the term denied. To assist the hard working lawyers of the Bureau of Immigration and the solicitor generals office I include the following:

Abeyance definition (Webster’s New World College Dictionary)

  1. temporary suspension, as of an activity or function
  2. Law a state of not having been determined or settled, as of lands the present ownership of which has not been established

Deny definition (Webster’s New World College Dictionary)

 to give a negative answer to ing the petitioners> b : to refuse to grant c : to restrain (oneself)

  1. 15.       The eighth claim we challenge is: The contents of testimony given 27 August 2009 in a criminal case constitute proof of ownership in Bangkok Nights Restobar and Internet cafes. We have beaten this horse to death.
  2. 16.    The ninth claim we challenge is: Since we now have a charge sheet the arrest is legal. As stated earlier we believe the mission order to be illegal which would make the charge sheet Illegal. Further more: The 1986 Philippine Constitution requires that prior to any detention and arrest, the person who stands to be arrested and detained must be given the opportunity to be heard. This requirement has two-fold aspect, substantive and procedural. The relevant portion of the provision of the Constitution is quoted as follows:

“ARTICLE III

BILL OF RIGHTS

 

Section 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be deprived the equal protection of the laws.”

 

 

 

The procedural aspect of the due process clause of the Constitution requires that prior to any arrest or detention, the proper procedure in arresting and detaining a person must be strictly complied. This includes the opportunity be given to be informed of the charges against him and the opportunity to answer the charges.  This was not observed in the case of herein respondents.

On 04 November 2009, counsel for herein respondent obtained a copy of the Charge Sheet against the respondent. Respondent maintains that the said Charge Sheet is not valid since the proper procedure was also not strictly observed. This is because issuance of the Charge Sheet was done without giving the respondent the reasonable opportunity to be heard as the Special Prosecutor was not able to conduct a preliminary investigation.

 

  1. Thus, with the procedural and substantive aspects of the due process requirement being disregarded by the operatives and officials of the Bureau of Immigration, they cannot perform a valid arrest, detention and institution of  deportation proceedings against the respondent.

 

 

  1. The Charge Sheet, in summary, charges him of the following:

 

  1. Respondent was apprehended around 12:30 P.M. “while having routing (sic) check  of Bangkok Restaurant which he owned, managed and operates (sic) at Iligan City.
  2. He is the owner and engaged in business of Internet Marketing Outsourcing named Team Bin Corporation in Iligan City.
  3. Records of Stenographic notes that he is president and managing director of Team Sir Jeff in Iligan City.

 

 

19.    The charges are vague.  The Charge Sheet did not include nor even mention the evidence or proof to substantiate the claims made by the arresting officers. There was no clarity as to the exact activity that respondent was doing at the time of his arrest.  The phrase “while having routing (sic) check (Probably routine check)  is vague and does not constitute a violation of any immigration law, rule or regulation.  What is a “routine check”?  The charges  failed to describe or particularize the offense attempted to be charged with sufficient definiteness, certainty or specificity to inform the defendants of the nature and causes of the accusations or to enable him to prepare his defense.

 

  1. What facts and circumstances are necessary to be included therein must be determined by reference to the definition and elements of the specific crimes. “ [4]

 

21.    The charges are bereft of evidentiary support.  It is a mere presumption on the part of the arresting officers to make arrive at the conclusion that respondent owned Bangkok Restaurant without any proof whatsoever .  The said restaurant is owned by a certain Mylen J. Monte as proven by a Certification dated 03 September 2009, a record which on file with the Bureau of Immigration. It is said is the Certification that  on 31 August 2009  respondent  Jeffrey Evans “entered Bangkok Nights Resto-Bar premises without her permission and allegedly violated the Temporary Protection Order (TPO) of Civil Case Number 11-7172…”[5]  Now, if respondent is the owner of said Bangkok restaurant, then why would he need the permission of Mylen J. Monte to enter the said premises? This certification on file with the Bureau is the best evidence as to who is the real owner of  said Bangkok Restaurant!

 

  1. There was no preliminary investigation that was conducted!  The records will readily show that respondent was not even required to file his counter-affidavit or answer the charges against him. Under the Rules of Court, which is suppletory to all kinds of proceedings, it is a minimum requirement in a preliminary investigation to have the complaint accompanied by affidavit/s and supporting documents to establish probable cause. [6]

 

 

Summary: Mr. Evans was asked several months ago by Mr. Pacasum if he had a problem with Attorney Garcillano. Mr. Evans replied “Yes, I am at war with him” Mr. Pacasum replied “That explains it.” Mr. Pacasum in his original letter states: “Also, he filed a baseless complaint against Iliganons which to me is a manifest ingratitude and injustice to my constituents.” Mr. Evans filed complaints against one group of people who came into his home on the night of 27 June 2008. One man impersonated a police officer and threatened the life of his lawyer. Another member of the party issued a death threat outside the prosecutor’s office to one of the witnesses. All witnesses received death threats and all death threats were reported. No other cases were filed against any Iliganon. Attorney Garcillano represented a number of these people. Mr. Evans has never filed any cases against persons who were not present on that evening. So information provided by a man whose tactics in court did not prevail appears to have started this chain reaction. Two of the participants that night “connived” (NBI’s words) along with agents from Immigration to put Mr. Evans in Bangkok Nights Restobar. (They report a tipster said Mr. Evans will make a routine check of his bar at 12:30) An investigation showed that Mr. Evans received a text, detailed in Exhibit 2 that it was not until he was sent a text at noon and shortly thereafter that he even knew he was going to Bangkok Nights at 12:30 and it was not to make any “routine check”.

Taking the information provided by Mr. Pacasum that Mr. Pacasum said himself was supposed to be investigated (NBI Report), Mr. Lanto took two pieces of information from a “tipster” and requested a mission order.

 

The arrest was not only illegal it has developed into a complete travesty of justice and a serious stain on the integrity of the Bureau of Immigration.

 

Considering the final claim by the Bureau of Immigration that a writ of habeas corpus is a mute point, We would point out that because of the abuses of power, procedures and constitutional rights detailed herein we believe it to be every bit as necessary now as when Mr. Evans was behind bars.

 

 


[1] (Qua Chee Gan, et al. v. The Deportation Board, G.R. No. L-10280, September 30, 1963.)

 

[2] People vs. Laguio Jr. G.R. No. 128587 March 16,2007

 

[3] Francisco Chavez vs. Raul M. Gonzales, G. R. No. 168388, 15 February 2008

 

[4] Serapio v. Sandiganbayan (Third Division), 444 Phil. 499, 522 (2003).

[5] Annex “1”

[6] Rules of Court, Rule 112,Section 3

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2 Responses to “Preliminary Response To Return Of Writ”

  1. […] My apologies for any formatting changes and maybe a misspelled word or two. This document was provided in hard copy. It had to be scanned in, run through an OCR, corrected then posted. As of this writing my lawyers are reviewing my response. The preliminary response can be found here. […]

  2. Danny says:

    Hi Jeffrey,

    I am an Australian currently here in the Philippines and experiencing similar problems with immigration.

    I noticed your site and thought we should get in touch to exchange ideas.

    You can contact me on mobile 0918 800 2200 send me a sms message or alternatively austraasiaore@gmail.com or Danny Jovica for Skype.

    Look forward to hearing from you.

    -Danny

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